State v. Coombs
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:		1998 ME 1
Docket:		Cum-96-631
Argued:		September 5, 1997
Decided :		January 2, 1998

Panel:	WATHEN, C.J., and ROBERTS, RUDMAN, DANA and LIPEZ, JJ.
Majority:  WATHEN, C.J., and ROBERTS, RUDMAN, and LIPEZ, JJ.
Dissent: DANA, J.

STATE OF MAINE

v.

SANDRA E. COOMBS

WATHEN, C.J.

	[¶1]	Sandra E. Coombs appeals from the judgment of conviction
entered in the Superior Court (Cumberland County, Crowley, J.) following a
jury verdict finding her guilty of theft.{1}  On appeal, she challenges the order
entered in the District Court (West Bath, Field, J.) denying her motion to
suppress her confession.  She argues that the court erred in finding that her
confession was voluntary and that she waived her Miranda rights before she
confessed.  Finding no error, we affirm.
	[¶2] The facts set forth in the record may be briefly summarized as
follows:  On December 16, 1995, L.L. Bean store detective Keane McGarvey
responded to a possible theft.  A man had attempted to return a woman's
sweater for a refund, claiming that it had been purchased a week earlier. 
The man was unable to produce a receipt and the store's inventory system
indicated that the sweater had been placed on the sales floor that day. 
Concluding that the sweater had likely been stolen, McGarvey questioned
the man.  The man said that the sweater belonged to a friend, and that the
friend and Coombs were waiting for him in the parking lot.  
	[¶3] After contacting the Freeport Police Department, McGarvey and
another store detective located the friend and Coombs in a car in the
parking lot.  The two detectives watched the car until Freeport police
Sergeant Terry Carter arrived.  Sergeant Carter approached the vehicle,
asked for the registration, and observed Coombs open the glove
compartment, revealing a small bag of marijuana.  Sergeant Carter
confiscated the bag and McGarvey asked Coombs if she would return to the
store to discuss the sweater incident.  Coombs agreed and voluntarily
accompanied McGarvey to the store.  McGarvey did not physically restrain
Coombs. 
	[¶4] At the store, Sergeant Carter performed a records check and
discovered that there was an outstanding warrant for Coombs' arrest for
failure to pay fines.  When informed of the warrant, Coombs began to cry and
said that she did not want to go to jail.  Pursuant to the warrant, Sergeant
Carter arrested and handcuffed Coombs.  He did not ask her any questions
or try to elicit incriminating responses from her. 
	[¶5] Sergeant Carter transported Coombs to the Freeport police
station and placed her in an interrogation room.  He then read Coombs her
Miranda rights.  Coombs indicated that she understood her rights and was
willing to answer questions.  During the interrogation, Sergeant Carter
intermittently left and re-entered the room, telling Coombs that the other
man being questioned had implicated her in the theft of the sweater. 
Coombs was handcuffed to a horizontal pole running through the center of
the room while Sergeant Carter was out of the room.  She was handcuffed
for 15-30 minutes and was able to sit down during that time. 
     [¶6] Although Coombs cried periodically throughout the interrogation,
she did not tell Sergeant Carter that she wanted the interrogation to cease.  
After a two- or three-hour interrogation, Coombs confessed her involvement
in the theft of the sweater.  Sergeant Carter then asked her to make a
voluntary written statement and she agreed, preparing a signed, written
confession that was consistent with her verbal statements.  Following the
denial of a suppression motion, the confession was admitted at trial and the
jury returned a guilty verdict.  Defendant now appeals, and argues that we
must review both suppression rulings de novo.  

Voluntariness of the Confession

	[¶7]  Whether a confession is voluntary is primarily a question of fact,
see, e.g., State v. Wood, 662 A.2d 908, 911 (Me. 1995); State v. Tardiff, 374
A.2d 598, 600 (Me. 1977), and we review the suppression judge's
determination for clear error.  See, e.g., State v. Cole, 1997 ME 112, ¶ 6,
695 A.2d 1180, 1182; State v. Smith, 615 A.2d 1162, 1163 (Me. 1992);
State v. Pinkham, 510 A.2d 520, 522 (Me. 1986).  The suppression judge
must consider the totality of the circumstances in determining whether a
confession is voluntary, State v. Smith, 615 A.2d at 1163, and the inquiry is
fact intensive.  The opportunity to view witnesses and assess their credibility
demands that we review the suppression judge's resolution of factual issues
deferentially under the clear error standard.  State v. Cefalo, 396 A.2d 233,
239 (Me. 1979); cf. State v. Reardon, 486 A.2d 112, 119 (Me. 1984). 
Deference is also warranted by the fact finder's "particular expertise" and
recognition of "its proper institutional role."  Casco N. Bank v. JBI Assocs.,
667 A.2d 856, 859 (Me. 1995).  
	[¶8] Although findings of fact are reviewed deferentially, the
application of legal principles to those findings is reviewed independently. 
See State v. Cefalo, 396 A.2d at 240 (noting that trial court's legal
conclusions, drawn from findings of historical facts, are "subject to the
independent examination and judgment of the Law Court."); State v.
Arnheiter, 598 A.2d 1183, 1185 (Me. 1991) (reviewing trial court's factual
findings for clear error and trial court's legal conclusions for error); State v.
Johnson, 413 A.2d 931, 933 (Me. 1980)("Since the challenges here are to
the legal conclusions of the Superior Court Justice, and not to his findings of
fact, the clearly erroneous standard is inapplicable.").  Independent
appellate review of legal conclusions is appropriate because the reviewing
court "is in as good a position as the trial judge to determine whether the
historical facts warrant a legal conclusion . . . ."  State v. Cefalo, 396 A.2d at
239.  The rationale that demands deferential review of the trial court's
findings of historical facts does not require that we accord the same level of
deference to the trial court's conclusions of law.
	[¶9] This bifurcated approach to the standard of review is supported
by decisions of the United States Supreme Court.  For example, the issue
presented in Miller v. Fenton, 474 U.S. 104, 106 S. Ct. 445, 88 L. Ed. 2d
405 (1985), was whether a state-court determination of the voluntariness of
a confession was a factual issue entitled to a presumption of correctness
pursuant to 28 U.S.C. § 2254(d) in a federal habeas corpus proceeding.{2} 
Holding that volutariness was a legal issue warranting plenary federal review,
the court stated that

the nature of inquiry itself lends support to the conclusion that
"voluntariness" is a legal question meriting independent
consideration in a federal habeas corpus proceeding.  Although
sometimes framed as an issue of "psychological fact," the
dispositive question of the volutariness of a confession has
always had a uniquely legal dimension.

Id. at 115-16, 106 S. Ct. at 452.  The court cautioned, however, that
 
subsidiary questions, such as the length and circumstances of
the interrogation, the defendant's prior experience with the
legal process, and familiarity with the Miranda warnings, often
require the resolution of conflicting testimony of police and
defendant.  The law is therefore clear that state-court findings
on such matters are conclusive on the habeas court . . . . 

Id. at 117, 106 S. Ct. at 453.  Thus, Miller established a two-pronged
standard of review:  clear error for findings of fact and de novo or
independent review for conclusions of law.   We agree that the dispositive
issue of the volutariness of a confession, although based on all the facts and
circumstances surrounding the confession, is a legal issue warranting
independent appellate review. 
	[¶10] A confession is admissible in evidence only if voluntary,  State v.
Philbrick, 481 A.2d 488, 494 (Me. 1984), and the State bears the burden of
establishing voluntariness beyond a reasonable doubt.  State v. Snow, 513
A.2d 274, 276 (Me. 1986).  "A confession is voluntary if it results from the
free choice of a rational mind, if it is not a product of coercive police
conduct, and if under all the circumstances its admission would be
fundamentally fair."  State v. Mikulewicz, 462 A.2d 497, 501 (Me. 1983). 
Coombs argues that her confession was involuntary because Sergeant Carter
promised that she would not be charged with possession of marijuana if she
confessed to the theft.  She also argues that her confession was the product
of coercive police activity.  We reject both arguments. 
	[¶11] A confession motivated by a promise of leniency by a person
with apparent authority to execute the promise is involuntary and
inadmissible.  State v. Tardiff, 374 A.2d 598, 601 (Me. 1977).  At the
suppression hearing, Sergeant Carter testified that he did not promise
Coombs anything in exchange for her confession and, although he conceded
that he flushed the marijuana down the toilet, he denied telling Coombs that
she would not be charged with possession if she confessed to the theft.{3} 
Although Coombs testified to the contrary, the suppression judge, as the fact
finder, was free to accept Sergeant Carter's testimony over Coombs'.  See
State v. Larrivee, 479 A.2d 347, 349 (Me. 1984); State v. Knights, 482 A.2d
436, 442 (Me. 1984).  The trial court's finding is based on competent
evidence and is not clearly erroneous.{4}  See State v. Navarro, 621 A.2d 408,
413 (Me. 1993).   
	[¶12] We also reject Coombs' argument that her confession was
coerced.  The length of the interrogation was not inherently coercive, see
State v. Gosselin, 594 A.2d 1102, 1105 (Me. 1984)(holding that under the
circumstances three hour interrogation did not amount to coercion), nor
does the fact that Coombs was crying and upset during interrogation,
without more, render her confession involuntary.  See State v. Durepo, 472
A.2d 919, 921 (Me. 1984).  Sergeant Carter testified that he did not
threaten Coombs, that Coombs voluntarily confessed to the theft, and that
she agreed to sign a written confession after he informed her that she was
not required to do so.  Coombs was not interrogated continuously and was
handcuffed to the pole only when Sergeant Carter left the room.  Sergeant
Carter estimated that she was handcuffed to the pole no longer than thirty
minutes. Under these circumstances, the suppression judge did not err as a
matter of law by concluding that Coombs' confession was voluntary. 

Waiver of Miranda Rights

	[¶13]  We have previously held that a suppression judge's findings
regarding  Miranda issues are reviewed for clear error.  See  State v. Cooper,
617 A.2d 1011, 1013 (Me. 1992); State v. Leone, 581 A.2d 394, 397 (Me.
1990); State v. Barczak, 562 A.2d 140, 144 (Me. 1989).  Whether a
defendant has validly waived her Miranda rights depends on the factual
circumstances of the interrogation.  State v. DeLong, 505 A.2d 803, 808
(Me. 1986).  Although the trial court's resolution of those factual issues is
reviewed for clear error, the ultimate issue of waiver has a "uniquely legal
dimension," Miller v. Fenton, 474 U.S. at 116, 106 S. Ct. at 452, which
merits independent appellate review.  See United States v. Guay, 108 F.3d
545, 549 (4th Cir. 1997); United States v. Mills, 1997 WL 450074, *3 (7th
Cir. 1997); United States v. Anderson, 79 F.3d 1522, 1525 (9th Cir. 1996);
United States v. Toro-Pelaez, 107 F.3d 819, 826 (10th Cir. 1997);  United
States v. Chirinos, 112 F.3d 1089, 1102 (11th Cir. 1997).  
	[¶14] Coombs contends that her confession should have been
suppressed because she did not validly waive her Miranda rights prior to
giving the confession.  Coombs concedes that Sergeant Carter read to her
the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966), and that she understood those warnings.  In
support of her argument, Coombs points to her testimony that she asked to
be left alone several times during the interrogation. 
	[¶15] "[T]o constitute a valid waiver, a defendant's conduct must
amount to an 'intentional relinquishment or abandonment of a known right
or privilege."  State v. Knights, 482 A.2d at 440.  An explicit oral or written
statement is not an essential component of a valid waiver of Miranda rights. 
State v. DeLong, 505 A.2d at 808 (citing North Carolina v. Butler, 441 U.S.
369, 373, 375-76, 99 S. Ct. 1755, 1757, 1758-59, 60 L. Ed. 2d 286
(1979)).  The State bears the burden of establishing a knowing, intelligent,
and voluntary waiver of Miranda rights by a preponderance of the evidence. 
State v. Snow, 513 A.2d 274, 276 (Me. 1986).  
	[¶16]  Sergeant Carter testified that, at the police station, he read
Coombs her Miranda rights from a printed form taped to the desk in the
interrogation room.  He also testified, and Coombs concedes, that she stated
that she understood her rights and did not invoke her right to counsel. 
Sergeant Carter also testified that Coombs told him that she was willing to
answer any questions he had for her.   The trial court's factual finding that
Coombs did not tell Sergeant Carter that she wanted to terminate the
questioning is supported by Sergeant Carter's testimony, and therefore is
not clearly erroneous.  As to the ultimate issue of waiver, under these
circumstances, the court did not err by concluding that Coombs made a
knowing, intelligent and voluntary waiver of her Miranda rights.  See State v.
Snow, 513 A.2d at 276 (holding that defendant validly waived Miranda rights
when defendant indicated he understood the warnings and wanted to talk
about the incident).
	The entry is:
					Judgment affirmed. 
DANA, J., dissenting.

	[¶17]  I respectfully dissent.  Although I agree with the Court's
recognition of the propriety of a bifurcated approach to reviewing questions
of the voluntariness of a confession and the waiver of the rights protected
pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966), I cannot, in these circumstances, join in the Court's affirmance
of the District Court's finding that Coombs' confession was voluntary beyond
a reasonable doubt.
	[¶18]  The State bears the burden of proving a confession voluntary
beyond a reasonable doubt before it can be admitted in evidence against the
defendant.  State v. Wood, 662 A.2d 908, 911 (Me. 1995).  The suppression
court's factual findings regarding voluntariness will be upheld unless the
evidence compels a contrary inference.  See State v. Simmons, 435 A.2d
1090, 1093 (Me. 1981).  In my opinion, the totality of the circumstances,
even when viewed in the light most favorable to the State, compels a
reasonable doubt as to the voluntariness of Coombs' confession.
	[¶19]  Coombs, while in custody after being arrested on a bench
warrant for failure to pay a fine, was subjected to a three-hour interrogation
regarding a completely unrelated offense, intermittently handcuffed, not
allowed to make a phone call, and her request to be informed as to her bail
on the outstanding fine went unheeded.  She was crying, denying the theft
charge, and expressing her fear of going to jail.  Sergeant Carter could not
even recall providing her with a glass of water, a tissue, or the use of the
bathroom over the three-hour period, although he testified that she cried
easily, was emotional, and needed breaks to gain her composure (during
which he handcuffed her to a pole running through the interrogation room). 
Sergeant Carter admitted that he told Coombs that he would "in all
probability be charging her with [possession of marijuana]."  Coombs
testified that Sergeant Carter said, "I could take two charges of theft and
possession of marijuana or I could confess to the theft and he'd flush the
marijuana."  It is undisputed that immediately after Coombs signed a
confession to the theft of a sweater, Sergeant Carter flushed some quantity
of marijuana down the toilet and ripped up an already completed summons
for possession of the drug.  He even made a point of inviting Coombs into the
bathroom to watch.  The State conceded at oral argument that this
destruction of evidence was beyond the authority granted to the officer.{5}  At
the suppression hearing, Sergeant Carter offered no explanation for his act
of destroying evidence.
	[¶20]  The court did not find that no promise was made to Coombs.{6} 
It did state that there had been "no promises which would give rise to a
constitutional infirmity."  The Court's reference to State v. Tardiff, 374 A.2d
598 (Me. 1977) and its bright line rule that any promise renders a
confession involuntary forces the Court to assume that the District Court
found that no promise was made.  See supra note 4.  The Court's reliance on
Tardiff, which based its holding on Bram v. United States, 168 U.S. 532, 18
S. Ct. 183, 42 L. Ed. 568 (1897), fails to account for the Supreme Court's
recent limitation of Bram.  See Arizona v. Fulminante, 499 U.S. 279, 285-86,
111 S. Ct. 1246, 1251-52, 113 L. Ed. 2d 302 (1991) (recognizing that the
current standard for determining the voluntariness of a confession is the
totality of the circumstances test).  The District Court may have concluded,
incorrectly in my view, that despite a promise by Sergeant Carter, under the
"totality of the circumstances" test Coombs' confession was still voluntary.
	[¶21]  Sergeant Carter's destruction of evidence immediately after
obtaining Coombs' confession, in the absence of any rational explanation for
his action, is sufficient to compel a reasonable doubt as to the voluntariness
of Coombs' confession.  I would therefore vacate the conviction.
                                                                                               
Attorneys for State:
	
Stephanie Anderson, District Attorney	
Julia Sheridan, Asst. Dist. Atty., (orally)	
142 Federal Street	
Portland, ME 04101

Attorney for defendant:

Gail E. Peabody, Esq., (orally)
P O Box 270
Orr's Island, ME 04066

FOOTNOTES******************************** {1} "A person is guilty of theft if he obtains or exercises unauthorized control over the property of another with intent to deprive him thereof." 17-A M.R.S.A. § 353(1) (1983). {2} In pertinent part, 28 U.S.C. § 2254(d) (1992) provides: (d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to a judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State . . . were parties . . . shall be presumed to be correct, unless . . . (8) . . . the Federal court . . . concludes that such factual determination is not supported by the record as a whole. {3} Sergeant Carter testified that he found a "very small quantity of marijuana" in the glove compartment of Coombs' car. Possession of a usable amount of marijuana is a civil violation pursuant to 22 M.R.S.A. § 2383 (1992). {4} The suppression judge found that "there were no promises which would give rise to a constitutional infirmity[.]" Coombs contends that this finding is ambiguous, that it is unclear whether the suppression judge found that no promise had been made or that a promise of no constitutional significance had been made. Because we assume that the suppression judge found for the prosecution on all issues of fact necessarily raised by his denial of the motion to suppress, State v. Cefalo, 396 A.2d at 239 n.12, we reject Coombs' contention. {5} Maine law makes criminal the destruction of physical evidence that might aid in the discovery, apprehension, or conviction of a person accused of a crime. See 17-A M.R.S.A. § 753(1)(C) (1983) (Hindering apprehension or prosecution). The Court correctly notes that possession of a usable amount of marijuana is a civil offense in Maine. See supra note 3. It is not clear from the record how much marijuana Sergeant Carter disposed of, however. Although he testified that he found a "very small quantity of marijuana," Coombs recalled that there "was quite a large amount" of marijuana, "probably ... half of a sandwich bag full." Possession of more than one and a quarter ounces of marijuana gives rise to a presumption of guilt of the crime of unlawfully furnishing scheduled drugs. 17-A M.R.S.A. § 1106(3)(A) (Supp. 1997). In any event, Sergeant Carter's unauthorized and highly irregular act of destroying evidence of either a civil or criminal offense raises serious doubts about the circumstances surrounding Coombs' confession. {6} The court also did not believe Sergeant Carter in all respects. For example, Sergeant Carter testified that after arriving at the store he approached Coombs' car, tapped on the window, and asked the occupants to step out of the car and show identification. Coombs, on the other hand, did not recall Sergeant Carter tapping on the window and testified that he "opened up the doors and physically removed us from the car." The court explicitly rejected Sergeant Carter's version of the facts, finding that "Carter hauled the two suspects . . . out of the car."